Nobbs v Heath

[2001] NFSC 2

SUPREME COURT OF NORFOLK ISLAND

Nobbs v Heath [2001] NFSC 2

CRIMINAL LAW – Sentence – Sexual offences involving young children – Victims were daughters of close relatives of offender – Seriousness of offences – Prior good behaviour and notable community service – Periodic detention orders made by magistrate affirmed.

STEPHEN ENOCH NOBBS v RACHEL HEATH
SCC 1 of 2001

WILCOX J
4 MAY 2001
NORFOLK ISLAND

IN THE SUPREME COURT
OF NORFOLK ISLAND	SCC 1 of 2001

BETWEEN:	STEPHEN ENOCH NOBBS APPELLANT
AND:	RACHEL HEATH RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	4 MAY 2001
WHERE MADE:	NORFOLK ISLAND

THE COURT ORDERS THAT:

1.The appeal be allowed to the extent that the convictions and orders in respect of charges CC15/2000 and CC19/2000 be set aside.

2.In lieu of these convictions and orders it be ordered that charges CC15/2000 and CC19/2000 be dismissed.

3.Affirm the orders regarding sentence made by the Chief Magistrate except that the Court substitutes, as the time and date for commencement, 8pm on Saturday, 19 May 2001.

IN THE SUPREME COURT
OF NORFOLK ISLAND	SCC 1 of 2001

BETWEEN:	STEPHEN ENOCH NOBBS APPELLANT
AND:	RACHEL HEATH RESPONDENT

JUDGE:	WILCOX J
DATE:	4 MAY 2001
PLACE:	NORFOLK ISLAND

REASONS FOR JUDGMENT

WILCOX J:

1. The matter of sentence is an important one.  Under some circumstances, I would take time to consider it further.  However, I do not think I need do that.  I have had the benefit of reading the material that has been tendered on sentence, which I have marked Exhibit S1, and I note the evidence of Dr Davie concerning Mrs. Nobbs’ medical condition.  I also note there is a considerable amount of evidence as to the high standing of the appellant in the Norfolk Island community and the service he has rendered, in many capacities, over many years. 

2. Mr Potter, for the prosecution, asks me to impose a custodial sentence under which Mr. Nobbs would serve a period in prison.  This would need to be off the Island, no doubt in Australia.  The appellant’s solicitor, Mr. Brown, asks me to impose a suspended sentence which would mean, subject to Mr. Nobbs not offending again, there would be no penalty, in any practical sense.  I do not think either of these options is the appropriate course to adopt. 

3. The Chief Magistrate spent a considerable amount of time dealing with the matter of sentence.  I think he got it right.  To sentence Mr. Nobbs to a custodial term off Norfolk Island would be to impose a considerable burden on his family, and in particular his wife.  I think it is also true to say that, when a person has reached the age of 68 years without any prior convictions and has given many years of service to the community, there is what the Chief Magistrate called a “credit bank” on which he is entitled to draw, to some extent.   Accordingly, I think a custodial term is not the appropriate penalty. 

4. On the other hand, if I were to accede to the submission that there should be a suspended sentence, I think I would be failing to reflect the seriousness of these offences.  It is true to say, as Mr. Brown does, that they are towards the lower end of the range of possible sexual offences. There was, for example, no penetration.  However, in my opinion, the offences are made more serious by the relationship of Mr. Nobbs to the two girls concerned.  In each case, they were daughters of close relatives.  They were children who had been taught to respect and love him.  The appellant’s actions were a serious breach of trust.  The Court has to reflect the seriousness of that breach. 

5. It is also true to say that no remorse has been shown.   Despite the Magistrate’s finding, Mr. Nobbs has adopted the position that he has done nothing wrong.  I have indicated that, in respect of four out of the six charges, I am satisfied of guilt beyond reasonable doubt.  The other two cases are not cases where Mr. Nobbs comes out with any endorsement.  The position, simply, is that, because of the detail of some of the evidence, I feel unable to be satisfied beyond reasonable doubt. 

6. So these are serious offences, particularly given the circumstances in which they were committed.  I think the Court has to indicate to the community that they are so regarded.  There is also the matter of deterrence of other people.  The message needs to be got around that children, and particularly young children, are not to be interfered with. 

7. I also need to take into account the effect on the victims and their families.  I have read the Victim Impact Statements.  Undoubtedly, what happened has had a significant effect on both Leah and Gaylene; and it must have rubbed off on members of their families.  The last year or so must have been a strain-filled time for them. 

8. All of this means that, for me simply to impose a suspended sentence, would reasonably cause some people to feel the Court is letting down the community.  The Court should not be vindictive.  At the same time, it should indicate the manner in which offences such these are regarded within the community.  

9. The number of convictions has been reduced, from the six found by the Magistrate to four found by me.  However, I do not think that fact should affect the sentence.  The Magistrate ordered, in effect, that the sentences be concurrent.  In other words, he said the fact that there are six convictions does not make the total penalty greater.  So therefore the fact that the six convictions reduce to four, logically, does not make the overall penalty any less. 

10. As I say, I think the Magistrate got it right.  I think 48 detention periods - which means 48 periods of 2 days each, during which Mr. Nobbs will be in detention and have to work for the community - does send a message that offences such as these are not tolerated by the community.  I appreciate that periodic detention will have an effect on the applicant’s business and on his wife.  However, I think Mr. Potter is right in saying Mr and Mrs Nobbs can afford to employ help in the apartments whilst he is in custody.  That is the obvious course for them to take. 

11. I do not think it is appropriate to direct that the sentence commence on a Friday night.  This would deprive Mr. Nobbs of the opportunity of going to his usual place of worship on a Saturday, if he so desires. 

12. I also think it is reasonable that, if his weekends are going to be tied up, he have some opportunity of first organising alternative arrangements; perhaps employing somebody.  So the periodic detention order will not apply immediately.

13. I affirm the orders made by the Magistrate in relation to sentence and his consequential orders, with the exception that I substitute for the date selected by the Magistrate for reporting time, 8.00pm on Saturday 19^th May; that is a fortnight tomorrow.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             4 June 2001

Solicitor for the Appellant:	John Brown
Solicitor for the Respondent:	Deen Potter
Date of Hearing:	4 May 2001